NSA-Muscular

Google chairman Eric Schmidt has been waving his hands crying “outrage” about the latest NSA revelations, which have shown that the spy agency is going behind Google’s backs to infiltrate its data as part of a program called MUSCULAR.

Those cries of protest are expected, so much so that they are mundane. As I argued a few days ago, Google and company need to do more than just gripe in public. They need to spend a lot of money and exert their considerable political clout in an effort to reform the US’s surveillance laws and practices. They need to treat this issue as more important than immigration reform, patent litigation reform, net neutrality, copyright, and antitrust cases.

We haven’t seen much indication, yet, that Google is willing to go that far. But we are, at least, seeing more fighting spirit from the lower ranks. (Which, it should be noted, are personal views, not the company’s.)

Overnight, a Google engineer provided us with what is so far the most deft articulation of the tech company’s dismay at the liberty-corroding practices of the NSA and its British equivalent, the GCHQ. Mike Hearn, who, according to his Google+ profile, is a Brit living in Switzerland, followed on from a colleague who had earlier said “Fuck these guys” about the spy agency. Hearn did not hold back in his useful addition to the debate over the NSA’s over-reach.

“I now join him in issuing a giant Fuck You to the people who made these slides,” Hearn wrote, referring to the NSA slides that showed exactly how the agency exploited Google’s data-center connections. He continued:

We designed this system to keep criminals out. There’s no ambiguity here. The warrant system with skeptical judges, paths for appeal, and rules of evidence was built from centuries of hard won experience. When it works, it represents as good a balance as we’ve got between the need to restrain the state and the need to keep crime in check. Bypassing that system is illegal for a good reason.

In other words, the NSA, in its efforts to protect freedom and democracy, has in short order wholly compromised freedom and democracy. With PRISM, it was already exploiting a legal system that, through political process, had been tilted in its favor. Whether or not you agree with the laws that have been passed in the name of combating terrorism, you have to live with them because they were passed in a democratic system and a democratic way.

Part of the crushing shame of this surveillance system, however, is that the NSA can argue that its activities were legal because it was collecting data from overseas, which, according to US foreign surveillance laws, is permissible. This “within the law” defense has been central to the NSA’s justifications of its data-gathering activities.

Still, the question of whether or not the NSA and the GCHQ have been acting within the laws, particularly with regards to stealing from Google and Yahoo, is overseen by secretive Congressional oversight and courts, out of the public eye. This is a debate that needs to happen in the open. Google needs to be aggressive in pushing it into the open. Its engineer, Hearn, provides a good moral cue for the company with forceful rhetoric that calls into question the idea that such agencies should get soft treatment by the judicial process in the first place:

Unfortunately we live in a world where all too often, laws are for the little people. Nobody at GCHQ or the NSA will ever stand before a judge and answer for this industrial-scale subversion of the judicial process.

Hearn’s solution to the continuing over-reach of the NSA and the GCHQ is to build more secure software. Just as important, however, is shifting the terms of the debate from “Is this legal?” to “Is this morally justified?” His post is a step in that direction. Now the top brass in Google should follow his lead.